Niu v Lu (no 2) - [2025] NSWDC 257

District Court

New South Wales

Medium Neutral Citation: Niu v Lu (no 2) [2025] NSWDC 257
Hearing dates: On the papers
Date of orders: 14 July 2025
Decision date: 14 July 2025
Jurisdiction: Civil
Before: Cole DCJ
Decision:
(1) The plaintiff is to pay the defendant’s costs on the ordinary basis until 2 January 2024, and thereafter on an indemnity basis, as agreed or assessed.

Catchwords:
COSTS — Application for an order for costs on an indemnity basis where an allegation that documents were forged was not made out

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Niu v Lu [2025] NSWDC 103
Pirrottina v Pirrottina (No 2) [2024] NSWSC 1053

Category: Consequential orders
Parties: Shichao Niu (Plaintiff)
Yixin Lu (Defendant)
Representation:
Counsel:
H Fielder (Plaintiff)
A Rizk (Defendant)
Solicitors:
Longton Legal (Plaintiff)
EXC Law (Defendant)

File Number(s): 2023/154908
Publication restriction: Nil

JUDGMENT

Judgment in relation to these proceedings was delivered on 2 April 2025 (Niu v Lu [2025] NSWDC 103 (‘the judgment’)). The plaintiff’s claims were dismissed.
The defendant, Mr Lu, now seeks an order for costs, partly on an indemnity basis.
Mr Niu submits that the appropriate order for costs is that the plaintiff pay the defendant’s costs of the proceedings on the ordinary basis, as agreed or assessed.

The defendant’s submissions

Mr Lu’s primary submission is that the Court should make the following costs order:

The plaintiff to pay the defendant’s costs on the ordinary basis until 2 January 2024, and thereafter on an indemnity basis, as agreed or assessed.

Mr Lu’s alternative submission is that, in the event that the Court is not inclined to make the order set out in [4] above, the following order should be made:

The plaintiff to pay the defendant’s costs of proving the matters set out in the Notice to Admit Facts and Authenticity of Documents dated 21 December 2023 on an indemnity basis, and all other costs on the ordinary basis, as agreed or assessed.

On 21 December 2023, pursuant to rules 17.3 and 17.4 of the Uniform Civil Procedure Rules 2005 (‘the Rules’), Mr Lu issued a Notice to Admit Facts and Authenticity of Documents (‘the Notice’) to Mr Niu. The Notice required Mr Niu to admit the authenticity of the ‘Repayment Agreement’ dated 24 August 2017, which was annexed to the Notice. The Notice also required Mr Niu to admit the following facts:

That the plaintiff executed the ‘Repayment Agreement’,

That the plaintiff executed the ‘Repayment Agreement’ on or about 24 August 2017,

That the plaintiff is referred to as ‘Party A’ in the ‘Repayment Agreement’,

That the ‘loan’ referred to in paragraph 1 of the ‘Repayment Agreement’ refers to money(s) ‘Party B’ borrowed in the amount of AUD260,000 between March and June 2017,

That ‘Party B’ in fact borrowed from the plaintiff the amount of AUD260,000 as a ‘loan’ as referred to in paragraph 1 of the ‘Repayment Agreement’,

That the terms of the ‘loan’ as between the plaintiff and ‘Party B’ is as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Niu v Lu (no 2)

Details

AGLC: Niu v Lu (no 2) [2025] NSWDC 257
Case: [2025] NSWDC 257
Decision Date: 14 July 2025

CaseChat Overview and Summary

Niu v Lu is a case where the plaintiff sought an order for costs on an indemnity basis following the dismissal of their proceedings against the defendant. The proceedings arose out of allegations by the plaintiff that the defendant had forged certain documents. The court was required to determine whether the plaintiff was entitled to an indemnity costs order given that the allegation of forgery was not upheld. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the plaintiff was entitled to an indemnity costs order, given that the allegation that the defendant had forged documents was not made out. The court had to consider the principles governing costs orders in the context of unsuccessful proceedings, particularly the circumstances in which a party may be ordered to pay costs on an indemnity basis. The court also needed to assess the merits of the plaintiff's case, the conduct of the parties, and whether any particular circumstances justified an indemnity costs order.

The court found that the plaintiff's allegation of forgery was not substantiated, and the proceedings were dismissed. Given that the primary allegation was not upheld, the court held that the plaintiff was not entitled to an indemnity costs order. Instead, the court ordered that the plaintiff pay the defendant's costs on the ordinary basis until a specified date, and thereafter on an indemnity basis, as agreed or assessed. The court reasoned that the plaintiff's case lacked merit and that there were no exceptional circumstances that would justify an indemnity costs order.

In conclusion, the court ruled that the plaintiff was to pay the defendant's costs on the ordinary basis until 2 January 2024, and thereafter on an indemnity basis, as agreed or assessed. This decision reflects the court's view that the plaintiff's case did not merit an indemnity costs order, as the primary allegation of document forgery was not proven.

Orders

Orders of the court

(1) The plaintiff is to pay the defendant’s costs on the ordinary basis until 2 January 2024, and thereafter on an indemnity basis, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Niu v Lu (no 2) [2025] NSWDC 257
Hearing dates:	On the papers
Date of orders:	14 July 2025
Decision date:	14 July 2025
Jurisdiction:	Civil
Before:	Cole DCJ
Decision:	(1) The plaintiff is to pay the defendant’s costs on the ordinary basis until 2 January 2024, and thereafter on an indemnity basis, as agreed or assessed.
Catchwords:	COSTS — Application for an order for costs on an indemnity basis where an allegation that documents were forged was not made out
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Niu v Lu [2025] NSWDC 103 Pirrottina v Pirrottina (No 2) [2024] NSWSC 1053
Category:	Consequential orders
Parties:	Shichao Niu (Plaintiff) Yixin Lu (Defendant)
Representation:	Counsel: H Fielder (Plaintiff) A Rizk (Defendant) Solicitors: Longton Legal (Plaintiff) EXC Law (Defendant)
File Number(s):	2023/154908
Publication restriction:	Nil